From today's long decision in Democracy Partners, LLC v. O'Keefe by D.C. Circuit Judge Karen LeCraft Henderson, joined by Judge Harry Edwards:
James O'Keefe is the Founder and former CEO of Project Veritas, a non-profit media organization that gathers news "almost exclusively [through] undercover journalism" … [including] "open and secret audiovisual recording" ….
In spring 2016, Project Veritas assigned one of its investigative reporters, Christian Hartsock, to find leads on a potential story about voter fraud schemes in the Wisconsin elections. Acting undercover, Hartsock infiltrated an election-watch party at a Milwaukee bar, where he met Scott Foval, a Democratic political consultant.
Using a fake name and backstory, Hartsock convinced Foval that he worked for a fictitious political consultant group and that one of his clients was a "progressive philanthropist [with] a deep disdain for voter ID laws." Hartsock told Foval that he was working on a "surrogate voter scheme[]," in which his client planned to open a shell company in Wisconsin, hire out-of-state voters and illegal immigrants and issue them employer-IDs that would allow them to vote fraudulently in Wisconsin's elections.
Foval thought Hartsock's scheme was "brilliant" and volunteered "all this advice" on "how to pull it off." He advised Hartsock to transport fraudulent voters to polling places with rentals or auctioned-off cars and he recommended expanding operations to Michigan and Illinois. Foval also suspected that Hartsock's unnamed client (who did not, in fact, exist) was receiving advice on the voter fraud scheme from Bob Creamer, a Democratic consultant in D.C.
Foval claimed that he "worked with Bob Creamer one-to-one all the time" and that Creamer was "somebody who hatches these ideas to people" on an "ongoing basis." "One of the things we do," Foval told Hartsock, is "stage very authentic" protests at Republican rallying events using trained locals and "get them[] into a situation on tape … that we can use later." Hartsock secretly recorded his entire conversation with Foval.
After the barroom conversation with Foval, Project Veritas turned its investigation to Creamer. Posing again as the fake consultant character, Hartsock persuaded Foval to arrange a meeting between Creamer and Hartsock's fake client, a role played by Daniel Sandini—another Project Veritas reporter. According to an internal Project Veritas memo, a main goal of the meeting was to convince Creamer to advise Sandini on the fictitious voter fraud scheme. A secondary objective was to uncover more information about the staged protests at Republican rallying events.
Sandini met with Creamer several times in summer 2016 and secretly recorded each conversation. As Hartsock had done with Foval, Sandini fed Creamer an elaborate backstory spun of whole cloth. He introduced himself to Creamer as "Charles Roth," a real-estate millionaire and son of a wealthy Hungarian immigrant who had made his fortune in America through urban development. Guilt-ridden that his father's work had displaced minorities and immigrants, Sandini told Creamer that he wanted to use his wealth to prevent Donald Trump's election to the Presidency.
Believing Sandini to be an interested donor, Creamer asked him to finance several voter outreach initiatives headed by Americans United for Change (AUFC), a political consulting group and one of Creamer's clients. To maintain appearances, Sandini made a $20,000 contribution to AUFC with funds supplied by Project Veritas. He also requested Creamer's help with the surrogate voter fraud scheme in Wisconsin. Creamer politely declined.
Undeterred, Project Veritas took steps to infiltrate Creamer's political consulting firm, Democracy Partners. Project Veritas reporter Allison Maass was assigned to the task. Building on the Charles Roth storyline, Maass assumed the role of Roth's imaginary niece, Angela Brandt, a 20-something-year-old with a budding interest in politics. Sandini, playing the Roth role, asked Creamer if he had any work for Maass and Creamer stated he was open to hiring her as an unpaid intern at Democracy Partners' D.C. office.
Creamer's subsequent vetting of Maass was perfunctory. He did not ask her to produce any legal identification, a list of references or a resume. After a "modestly-lengthy" telephone interview, Creamer offered her the position. When Democracy Partners eventually asked Maass for her resume to determine what projects to assign her, Maass submitted a fake one….
Maass abruptly left Democracy Partners in mid-October. Three days later, Project Veritas published the first of a three-part video series titled, "Rigging the Election." … In the video, O'Keefe claims to have uncovered a "dark money conspiracy" to instigate violence at Trump rallies and other Republican-sponsored events. The video implies that Foval, Creamer and Democracy Partners are implicated in the scheme…. [For more details see the full opinion. -EV] Several clips obtained from Maass's secret camera are also used in the video….
The fallout from the release of the Rigging the Election video was swift. Within days of the video's publication, it was being reported "all over the news." AUFC fired Foval immediately. One of Creamer's clients, the American Federation of State, County and Municipal Employees (AFSCME), also saw the video. That same day, AFSCME terminated its consulting and services agreements with Creamer's firm, Strategic Consulting. AFSCME was also AUFC's primary donor at the time and AFSCME's then-president, Lee Saunders, served on AUFC's board. After the video's release, Saunders withdrew from the AUFC board and AFSCME revoked AUFC's funding. With the loss of AFSCME's financial support, AUFC could no longer operate and terminated its consulting agreement with Creamer.
